There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side's arguments, said the defeat demonstrates the "ridiculously obvious" point that the Supreme Court is "a justificatory instrument" for military policy.

Then there is the clueless law professor theory.

Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

"There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

"If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy's echo chamber, you get this result," said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

The most bizarre aspect of the whole litigation, in my opinion, was that the Third Circuit opinion ruling for the law professors failed to discuss or even cite the case most obviously on point, Grove City College v. Bell, which held in rather conclusory language that Congress has rather wide authority to encourage universities via threats of withholding funding to follow federal policy, even if direct legislation on such issues would violate the schools' First Amendment rights. It was as if the Third Circuit majority decided that conditional federal funding was okay when it operated in the interest of "civil rights," as in Grove City, but not when it was not in the interest of "civil rights" as in the FAIR litigation. In fact, however, as I've noted before, the Solomon Amendment was modeled directly after Title IX, the antidiscrimination provision at issue in Grove City. Instead of being forced to adhere to rules designed to ban discrimination against women, Solomon required law schools to adhere to rules designed to ban discrimination against military recruiters. No amount outrage over what is seen as Congress' moral obtuseness in analogizing discrimination against women to discrimination against military recruiters could obscure the fact that if the federal government could threaten Grove City College's funding for refusing to follow federal antidiscrimination dictates, it could do the same to Yale and Harvard.

One bright spot of the FAIR opinion is that the Court seemed to suggest that it was willing to consider in a future case how broadly Grove City should be interpreted before the "unconstitutional conditions" doctrine kicks in. As someone who is very much opposed to the federal government exercising control over university policy via its spending power, that is a potentially welcome development indeed.

UPDATE: A VC commenter writes below:

Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?" Now this argument, unlike the one in the previous paragraph, is a matter of rhetoric. rather than objective fact. Here I am emphasizing the differences between the two cases and minimizing the similarities.

I've heard this argument many times before, but, sorry,it doesn't really help distinguish FAIR from Grove City. Grove City was not even alleged to have ever engaged in sex discrimination. Rather, the federal government threatened Grove City because it refused to collect statistics that the government wanted it to collect. Surely, if the government could take away Grove City's funding for engaging in behavior which wasn't even alleged to be discriminatory, the government could take away Yale's money for engaging in behavior that the government has defined as discriminatory. Also, as C.J. Roberts emphasized, the reason law schools had for discriminating against military recruiters, that the military itself discriminates against homosexuals, doesn't make the law schools' behavior any less discriminatory, but, at best, means that the law school thought it's reasons for discriminating were more important than the government's reasons for prohibiting discrimination. Whether that point of view is correct or not is, alas, legally irrelevant, as law schools cannot simply choose to obey only the laws they agree with.

I'm not a big fan of the commentary by gloating winners and sore losers on this issues. Peter Berkowitz writes a puff piece in the former category here, Howard Bashman writes a puff piece in the former category that pretends to be otherwise here, and now this piece in the NYTimes seems to juxtapose quotes from both sides.

This is really no better than the bar room banter among fans of opposing teams the day after a football game, where the losing fan says "the referees had it in for us, and football is a stupid sport anyway," while the winning fan says "this proves that God wanted us to win and that your team is just an inferior bunch of human beings."

Except this is by people who take themselves seriously. According to the Supreme Court, the Third Circuit read BSA v. Dale a bit too broadly, and the Harvard/Columbia statutory argument had an unduly nuanced and tendentious notion of what the word "access" meant. I don't think that makes the Supreme Court into the mouthpiece for the administration, or calls into question the intelligence or professional credentials of FAIR's lawyers. It's just one more constitutional debate that had a decisive outcome.

I wonder whether self-described conservatives will temper their enthusiasm for FAIR v. Rumsfeld when it's a different Congress using its spending power to impose conditions not so amenable to conservative policy preferences.

I continue to be surprised that so few commentators ascribe the motives of the law schools to the obvious: this was an Iraq war protest under false pretenses. The anti-gay policy bias argument is so attenuated that it is laughable, even if we assume that the schools talked themselves into believing it. Would military recruitment have been opposed using this argument if the law schools' faculties actually approved of the current war? Call me a cynic, but I just don't buy it, and it was unethical to carry such a pretense case to the Supreme Court.

From a story circulating when Chief Justice Roberts was still a nominee:

"One case he lost 9-0 and he had to call up his client, which is never a fun thing to do," recounted Richard Lazarus, a Georgetown University law professor who has known Roberts for nearly three decades and roomed with him in Washington. "His client was just incredulous, beside himself. 'How could we have lost 9-0?' John finally just quipped back, 'Because there are only nine justices.'

In FAIR, The Supreme Court said, in dicta and without explanation, that, under its war power, Congress could authorize the military to recruit in law schools without the law schools' consenting by accepting federal funds. I posted this on another Volokh thread and no one responded. Doesn't this trouble anyone? Can Congress authorize the military to set up a recruiting table in my living room to try to talk my kids into joining? Does the fact that the draft is supposedly constitutional mean that any lesser infringement of liberty under Congress's war power is too?

Cornellian makes a good point. Is there any real difference between the reasoning used by the Supreme Court in FAIR v. Rumsfeld and the reasoning used by the California Supreme Court in the recent Evans v. City of Berkeley case, holding that the city had a right to refuse to subsidize a Boy Scout organization due to the organization's effective refusal to agree to abide by the city's anti-discrimination policy?

There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side's arguments, said the defeat demonstrates the "ridiculously obvious" point that the Supreme Court is "a justificatory instrument" for military policy.

Then there is the clueless law professor theory.

I think the article should have stopped right there.

Ah yes, "Everything is politics." Marxist legal theory is so 80s.

Frankly, I was amazed at the 3rd Circuit ruling myself. After Grove City, I thought FAIR was borderline frivolous.

"it was unethical to carry such a pretense case to the Supreme Court."

So once FAIR prevailed in the Third Circuit, they should have conceded error and withdrawn? Even cases that lose 9-0 aren't necessarily cases that shouldn't have been brought in the first place. It's certainly not "unethical" to bring a case that eventually loses 9-0.

I continue to be surprised that so few commentators ascribe the motives of the law schools to the obvious: this was an Iraq war protest under false pretenses.

This could make sense if Supreme Court decisions had a very short history. This issue has been brewing for over a decade, with both sides's positions pretty well entrenched. It can be clearly traced to Clinton's Dontask/donttell policy, and would have emerged around now, Iraq war or not.

Bill Eskridge taught me Con Law (no, I didn't go to Yale). Should I be embarrassed? The guy is a great classroom teacher - very dynamic. But, really, he seems to be the poster child for the clueless law professor theory, dontcha think?

Hank, perhaps you've heard of the draft. Not only can Congress send recruiters into the schools, but it can take ordinary Americans off of the streets and conscript them into the military! Impossible, you say? Not so!

Congress can't send the military into your house, however, because it's your house and not a place that's held open to the public in any way. I think the Pruneyard case explains the distinction somewhat. I'm too lazy to read it right now.

This is really a matter of contract rather than constitutional law. The government can propose any terms it wants as part of a voluntary agreement, and the other side can refuse the deal. What's the problem?

Can Congress authorize the military to set up a recruiting table in my living room to try to talk my kids into joining? Does the fact that the draft is supposedly constitutional mean that any lesser infringement of liberty under Congress's war power is too?

I think you're not going to like the answer to this one. During wartime, Congress can even pass a law requiring you to provide room and board to soldiers. It's right there in the text of the Third Amendment. The only question is whether "wartime" can really exist for the duration of an indefinite "war on terror."

There surely are some limits to Congress' power to raise an army, but requiring universities to make their recruiting facilities equally available to military recruiters doesn't come close to the line, which is why this case was such a no-brainer.

WB: Your arguments are plausible, but not so obvious that the Supreme Court should have cited the war powers with no explanation -- especially when it was not necessary for its First Amendment analysis. Law schools are more public than my house, but not as public as the shopping mall in Pruneyard. Suppose a law school allows in no one but students, faculty, and other employees with IDs? Also, the infringement of liberty in setting up a recruiting table in my house is less than the draft, so, if the draft is constitutional, then why not a recruiting table in my home? As a practical matter, I expect that the Court would use Staley v. Georgia (the right to possess obscene material in one's home) to strike down a law authorizing non-censual recruiting in private homes. Of course, as a practical matter, no such law would be enacted if only because the military lacks the resources to set up recruiting tables in private homes.

I wonder whether self-described conservatives will temper their enthusiasm for FAIR v. Rumsfeld when it's a different Congress using its spending power to impose conditions not so amenable to conservative policy preferences.

Has The Cornellian not been paying attention? The government, precisely through the means seen in the FAIR case, has been making conservatives jump and dance to its tune for decades now. Perhaps they should be above it, but can anyone honestly be surprised when liberals get a small taste of what conservatives have been swallowing in large doses for decades, that conservatives gloat a bit?

Steve: Good point. I hadn't read the Third Amendment recently. At least, if we ever again have peacetime, there may be a limit to the FAIR dicta, though the Supreme Court didn't mention it in FAIR. By the way, in my reply to WB, "Staley" should be "Stanley." The cite is 394 U.S. 557 (1969).

Cornellian: I wonder whether self-described conservatives will temper their enthusiasm for FAIR v. Rumsfeld when it's a different Congress using its spending power to impose conditions not so amenable to conservative policy preferences.

Cornellian, did you actually READ the opinion?
(1) I doubt there's too much (other than a draft) that Congress could do under its support and raise armies power that conservatives (of which I am not one) would not like.
(2) Because equal access for military recruiters did not require funding to be constitutional, the mere conditioning of funding on equal access could not be constitutional. This wasn't a Spending Power issue power issue per se -- it said that the Spending Power alone couldn't render something unconstitutional if it would be OTHERWISE constitutional.
(3) SCOTUS also failed to give "Dale deference" to law schools' career opportunities for students as expressive entities, basically saying that they won't blindly accept any organization's own definition of what they determine to be their own expressive activities. Actually, I kind of wish they did, because I'd form a group that would refuse to pay taxes as our expressive activity, and then we couldn't be jailed or fined for engaging in our first amendment rights! ... :)

I fail to see how this changes the scope of the spending power, or the unconstitutional conditions doctrine, more than incrementally (if at all).

I think Bernstein's argument is interesting, but intellectually unpersuasive, at least with respect to this line:

"No amount outrage over what is seen as Congress' moral obtuseness in analogizing discrimination against women to discrimination against military recruiters could obscure the fact that if the federal government could threaten Grove City College's funding for refusing to follow federal antidiscrimination dictates, it could do the same to Yale and Harvard."

The language I object to the most is "the fact that." Please. Mere analogies are not about objective facts. A real fact is this: "discriminating against" military recruiters is not equivalent to discrimination against women. That IS an objective fact. The two things are not the same nor are they different along all dimensions. Whether you think the differences outweigh the similarities is a matter of subjective weighting. That in turn is a function of rhetoric, not reality.

Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?" Now this argument, unlike the one in the previous paragraph, is a matter of rhetoric. rather than objective fact. Here I am emphasizing the differences between the two cases and minimizing the similarities.

The fact is, as Bernstein or anyone familiar with the history of judicial decisions knows, this case could have come out the other way. If the justices had been inclined to come out the other way, they would have. What the results of this case tell us is more about the inclinations of the current Court, rather than anything about "facts" concerning logically compelled conclusions resulting from "reasoning" by analogy. (Analogy is not really reasoning, but rather mere rhetoric. But that is a story for another day.) It is merely a statement of rhetoric to say that the "fact" that such and such result arrived at from reasoning by analogy cannot be "obscured." Further, not only is it rhetoric, but it is rhetoric characeristic of an advocate, rather than an individual wishing to describe reality. As such, it is tainted. Perhaps someone searching for truth may find the rhetoric of advocates useful if our goal is to find what different people with different points of view think. But if we are interested in the truth of the matter, we should not be persuaded by advocates on the either side who stray beyond real facts. The nature of the argument itself is one that is not amenable to objective resolution. For every assignment of weights to similarities and differences that leads to a particular outcome in a case like this, their is another assignment that would lead to another outcome.

At the end of the day, Bernstein must admit the following absolutely true theorem of judicial review.

Different Court = Different Outcome

Its great that Bernstein wants to read his libertarian views into the Constitution, but of course, whether such views are actually so read into the document is simply a function of who is on the court. History very clearly demonstrates that.

There is one thing that we can predict very clearly. Libertarianism is NOT going to revive itself as a controlling Constitutional doctrine like it was in Lochner. Why? Because most Republicans are not libertarians. Sorry Bernstein, your outnumbered in your own party. But good luck with the pipe-dream though. =) It is good that the academic imagination knows no bounds, especially when it comes to imposing a particular conception of the good into the Constitution. Academic libertarians like Bernstein make the world a more interesting place. =)

Hank:
"Suppose a law school allows in no one but students, faculty, and other employees with IDs?"
That would probably pass muster, except for one thing. Virtually every law school's library gets federal documents for free under the Federal Depository Library program. As such, we are legally mandated to be open to the public for access to those documents. Consequently, almost every law school library is open to the public -- Georgetown is the sole exception that comes to mind (except for its Fed document section.)

But if you are a private law school, which doesn't receive federal funds or is a part of the FDLP, knock yourself out on whom you want to admit/exclude.

The reason the law profs lost was because their legal position was just plain wrong. 9-0, even though I imagine that a good number of Justices think that the don't ask, don't tell policy is stupid.

As I recall, when this case was first filed, David Bernstein actually expressed sympathy for the position of the law profs and used it as an excuse to call them out as hypocrites for not supporting Boys Scouts v. Dale. I agree that the law profs who were on both sides of the issue were to some degree hypocrites (though of course, there is nothign wrong with using a case you disagree with to argue a policy/legal result you do agree with). I do, however, think that Boys Scouts was also completely wrong, and the fact that 5 Justices of the Supreme Court bought into that ridiculous argument is just shocking. Proving again that the liberal moderate four are much less results-oriented than the other 5. (One rarely sees 9-0 decisions on issues with "liberal results" and in those cases where the law clearly compels it, err Gonzales v. Oregon, we have to read a ridiculous, intellectually dishonest dissent from Scalia every time. . . .)

I'm sorry for belittling your point earlier. After your reply, I suppose there's more to it than I initially thought. I don't really have anything to add to rbj's answer except to say that (1) it's in dicta, and (2) I don't think that law schools are close enough to being in an ambiguous middle ground between Pruneyard and my/your house that the dictum would have any force in that direction in later opinions.

Vonn,

I think you're nitpicking about semantics rather than confronting Bernstein's argument. "That doesn't change the fact that..." is a phrase that people often use when they mean "that doesn't respond to my argument that..." Annoying, yes, but I don't think Bernstein would fight you on that point. Why don't you discuss the problems with the analogy further before you accuse Bernstein of reading his own views into the Constitution? Yammering on about the obvious is one of the reasons why bloggers hesitate to allow comments.

Vorn: Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment.

These universities don't just grant equal access to, but they welcome and tout, employers who only seek to hire minority law students for particular positions. Harvard, for one, hosts a "minority job fair" every year including employers who only hire minority 1Ls for summer associate positions. (Yet their nondiscrimination policy includes race, sex, religion in addition to sexual orientation... go figure.)

GC, I was, and am, sympathetic as an ideological maatter to the law schools' autonomy claims. However, to win the case, they would have had to persuade the Court to dramatically expand Dale, and also distinguish or reverse Grove City, which was unlikely.

David -- the "it is not really discrimination" argument is an argument about statutory interpretation, not governmental power. IOW, the schools didn't violate the statute, not the gov't can't force them to let the military on campus.

Perhaps the dictum about Congress's Article I power is intended to set the stage for a reversal of Title IX intrusions into campus affairs. If that's so, the four "liberal" justices must have been sleeping. Come to think of it, Ginsburg has been nodding off lately.

"Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?""

Vorn, that is still discrimination. It is not only against the military, but it is against all recruiters who refuse to hire homosexuals. Deciding to exclude certain recruiters for any reason amounts to discrimination. That does not mean it is morally the same - but, legally, how can you make a difference? Sexual orientation does not define a class protected by federal or constitutional law, it is entirely legal (by federal law) to discriminate based upon it. And none of this relies upon the fact that military recruiters are special - the right of Congress to raise armies trumps any other rights the schools might assert.

"Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?" Now this argument, unlike the one in the previous paragraph, is a matter of rhetoric. rather than objective fact. Here I am emphasizing the differences between the two cases and minimizing the similarities."

What if, instead, law schools enacted a policy stating "we do not allow at our campus employers that possess nuclear weapons." This also doesn't single out the military, but in effect, the military (I hope) is the only institution that would recruit on campus that has nuclear weapons. Nope, no discrimination there!

Someone asked about what if a law school only allowed students and faculty with ID on campus. These schools would not have been affected by Solomon, since they would not have been allowing non-military recruiters on campus either, and, thus, would not have run afoul of Solomon's equal access for the military recruiters provision. But in the case where Solomon applied, like with Harvard, Yale, etc., non-military recruiters were being welcomed with open arms, and, thus, Congress could have just mandated that they provide space and access for the military recruiters under its Article I, Sect. 8 powers to raise and support an army and to provide and maintain a navy. After all, that is what JAG recruiting is all about - raising an army and navy. But if they didn't want to bother with that, they could, of course, just draft the JAG lawyers they wanted.

"Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?" Now this argument, unlike the one in the previous paragraph, is a matter of rhetoric. rather than objective fact. Here I am emphasizing the differences between the two cases and minimizing the similarities."

I seem to remember this being somewhat addressed by the opinion, because, after all, that is what some of the schools asserted. And the answer is that it would be fine if the schools did that - but they shouldn't expect federal money as a result. In other words, the schools are free to impose that sort of condition on recruiters, but Congress is just as free to impose their choice of conditions on the schools.

Besides, the schools can't be claiming this under color of law, since the law is DA/DT. Contrary to what these schools would like, there is no legal requirement that they discriminate against employers who discriminate on the basis of homosexual actions - esp. when applied to the military, bound by DA/DT. In other words, there are no federal laws that require this sort of discrimination by the schools (and any state laws would be preempted under Supremecy), esp. when applied to the military. They just wanted to do it.

Vorn, that is still discrimination. It is not only against the military, but it is against all recruiters who refuse to hire homosexuals. Deciding to exclude certain recruiters for any reason amounts to discrimination. That does not mean it is morally the same - but, legally, how can you make a difference? Sexual orientation does not define a class protected by federal or constitutional law, it is entirely legal (by federal law) to discriminate based upon it. And none of this relies upon the fact that military recruiters are special - the right of Congress to raise armies trumps any other rights the schools might assert.

I agree. Even if apparent sexual orientation were a protected class under federal law, the military is special here, with its recruiting needs trumping any such non-discrimination law (if it existed, which it doesn't).

What if, instead, law schools enacted a policy stating "we do not allow at our campus employers that possess nuclear weapons." This also doesn't single out the military, but in effect, the military (I hope) is the only institution that would recruit on campus that has nuclear weapons. Nope, no discrimination there!

Any purported neutrality of such a policy would be a sham, since (obviously) the only employer it could conceivably affect would be the military. By contrast, lots of employers are eager to discriminate on the basis of sexual orientation. Focus on the Family must employ lawyers, but good luck to any gay person who wants a job there.

Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?"

You're getting into purposive evaluation that wasn't mentioned in the original statement. I think the HLS professors brief might have come up with a single instance where an employer was kicked off campus for discriminating against gays, but let's face it, the nondiscrimination policy, at least at Harvard, isn't targetting the multiple employers who have 1L programs only open to minorities. The only invocation of the policy is to keep the military off campus.

Whether that point of view is correct or not is, alas, legally irrelevant, as law schools cannot simply choose to obey only the laws they agree with.

Unless of course, they can come up with a religious justification for their position, at which point they can make a pitch under the Religious Freedom Restoration Act. Actually, they don't even need the RFRA since a Quaker educational institution (for example) can refuse access to the military without losing its federal funding.

I have a question for those of you who agree with Tribe's statutory argument: Would you still believe that schools were not discriminating against the military if they had a policy against employers involved in the killing of human beings? How about a policy against employers with a dress code more restrictive than a suit and tie?

The government, precisely through the means seen in the FAIR case, has been making conservatives jump and dance to its tune for decades now. Perhaps they should be above it, but can anyone honestly be surprised when liberals get a small taste of what conservatives have been swallowing in large doses for decades, that conservatives gloat a bit?

Nope, not surprised at all, but the cost of gloating is the inability to object (at least with any credibility) to the constitutionality of control through spending once the Dems take back Congress. It's analogous to a Republican congressman complaining about an overly intrusive federal government after voting for the Terry Schiavo law.

Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?

The Solomon Amendment was not designed to ensure that the military was not discriminated against in the process used to decide what employers were allowed to participate in the law school hiring process. The Solomon Amendment was designed to require law schools to provide access to the military that is no worse than that provided to other employers. The discrimination that was prohibited was in the provision of access, not in the selection of who gets that access.

This is a critical disinction. Accept this fact and the rest is merely derivative. The Solomon Amendment implicitly assumes that the military will discriminate against gays and nonetheless requires that the law school must still give the military the same accoutriments that are provided to Jones Day and Shearman & Sterling.

The discrimination that is prohibited is that the law school may not invite Shearman to occupy a cubicle during career week and at the same time send the JAG recruiter to the basement stacks or across the street to a nearby hotel. On the other hand, if all the firms are required to recruit in the stacks or in the nearby hotel, the law school may send the JAG lawyers there as well.

The Solomon Amendment is better understood as a most-favored-nations clause benefiting the military.

I think that jgshapiro makes a good point - that Congress accepted that the military discriminates against gays, because, after all, they passed DA/DT and imposed the discrimination in the first place that the law schools were protesting. And, so, even if there were statutory law that supported FAIR, it wouldn't have done them any good. Homosexuality is not a Constitutionally protected class, and, thus, rational basis analysis is appropriate - in this case the military's claim that allowing active gays into the military would interfere with unit cohesion is sufficient to overcome this. And, thus, FAIR was left with other Constitutional means of challenging Solomon and DA/DT, notably the very weak 1st Amdt. claims they made.

HLStudent:
What if, instead, law schools enacted a policy stating "we do not allow at our campus employers that possess nuclear weapons." This also doesn't single out the military, but in effect, the military (I hope) is the only institution that would recruit on campus that has nuclear weapons. Nope, no discrimination there!

Even the Nineteenth Century Supreme Court saw through this kind of sham. See Yick Wo v Hopkins, involving an ordinance directed at laundries located in wooden buildings in a municipality in whIch all such laundries were owned by the Chinese.

I like your MFN analysis, but it depends whether you're talking Dole or Dale (sorry, I just wanted to say that).

But seriously, if you're not talking Dale and - as the Supreme Court seems quite clearly to hold in the third part of the analysis - this is not expressive association, then Congress could even favor the military.

This isn't speech, FAIR says, so you're not worried about that doctrine.

So, that means the only way you could argue that, under fair, the government couldn't go EVEN FURTHER than an MFN requirement is under the O'Brien test. If I remember the opinion correctly, I believed the court kicked the Law Schools out all over the place on O'Brien - this isn't expressive and even if it was, then its not related to the message so its permissible if O'Brien applies. Well, I imagine that the holding that this is not expression for O'brien purposes is "more" controlling of a holding than the holding that it is not related to the message (for goodness sakes, will the supreme court clarify what would constitute dicta here)l. If that's the case, then congress seems to have even more than the "MFN power" as under this doctrine as well.

Given the pretty obvious legal case for the government in FAIR I had always suspected the suit was carried through as much for PR reasons as for any real belief that the case would be succesfull. Even if you think that the case was meritorious it would be pretty absurd to think the current supreme court would have decided for the law schools.

Now assuming that the law profs aren't just idiots (reasonable assumption I imagine) this leaves two good explanations. First just a general interest in arguing a legal case, or just a hope that they would get lucky, despite a small change or winning. Secondly the chance to drag the military's discriminatory policy back out into the light again so people don't forget about it.

I always thought that these two reasons were the motivation to prosecute (not the legal term) this case.

Law profs aren't idiots. But being insulated in an echo chamber with the like-minded reinforcing each other's views, and having the elite-university presumption--like a four-year-old's--that what they like is what is morally and cosmically and legally right (how could it not be?) will send even non-idiots on quixotic quests. Not bad alliteration for this time of the day.

Law profs vs. the Supremes. Supremes win, 8-0. For the committed, remember, Bush did not appoint the majority of those voting.

After Dale, at least, Grove City was not the most on-point case because the decision in Grove City did not discuss the First Amendment rights of expressive associations at all.

In general, I find all this law prof bashing highly amusing. The fact is that the very broadly written decision in Dale gave FAIR a colorable argument, and in my view the Third Circuit did the right thing by applying Dale as it was written--namely, broadly. Then, the Supreme Court did the right thing by limiting the scope of Dale (and I personally hope to see more of that in the future).

Indeed, I think it was practically inevitable that such a case (a case in which a COA applied Dale as written and then the Court limited Dale) would eventually appear. This case happened to involve law profs against the military, and maybe that helps to explain why all three of the remaining Justices who voted for Dale also voted for FAIR. But eventually some other similar case was bound to arise, and garner at least a majority, because Dale as written was really just far too broad to sustain.

I remember back when the Fifth Circuit struck down UT Law's affirmative action program. Lino Graglia, a constitutional law professor at UT, said that he had been telling the law school for years that its admissions policy was clearly unconstitutional. None are so deaf as those who refuse to hear.

And in addition, assuming that those who disagree with you are nothing but bigots, can't help your legal analysis.

After Dale, at least, Grove City was not the most on-point case because the decision in Grove City did not discuss the First Amendment rights of expressive associations at all.

Grove City may not have used the words "expressive association," but it did address -- and summarily reject -- a first amendment argument. Since Dale didn't mention Grove City at all, the court was not going to find that it had overruled Grove City without realizing it.

And that assumes that this was an "expressive association" case at all. It was too clever by half of the professors to try that argument, and the only surprise is that two Third Circuit judges bought it. (If Dale were the only case on the subject, it would have been a stretch in itself. But given the many other cases that have construed that right narrowly, such as the Jaycees, it was ridiculous to think they'd prevail.

Moreover, the thought that ruling for FAIR would have fatally undermined all the civil rights laws in the U.S. probably gave any otherwise-sympathetic liberals on the Court reason to reject FAIR's arguments out of hand.)

I submit that the problem is fundamentally one of attempting to impliment one's moral universe through law. Non-discrimination coercion, achieved by government through spending power = good! (because I agree with the end result - a capital "G" Good - itself a moral argument using legal processes). Yet what happens when the application of the same legal rationale produces an end result, perfectly - no, manifestly, "Legal", that does not square with the personal subjective "moral" universe one seeks to impliment (read: Compel) through application of LAW? Live by the sword (or another version known as "law") , die by the sword.

I'm not sure I understand how you are treating Grove City and Dale. Here is the entire discussion of the First Amendment claim in Grove City:

"Grove City's final challenge to the Court of Appeals' decision - that conditioning federal assistance on compliance with Title IX infringes First Amendment rights of the College and its students - warrants only brief consideration. Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept. E.g., Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981). Grove City may terminate its participation in the BEOG program and thus avoid the requirements of 901(a). Students affected by the Department's action may either take their BEOG's elsewhere or attend Grove City without federal financial assistance. Requiring Grove City to comply with Title IX's prohibition of discrimination as a condition for its continued eligibility to participate in the BEOG program infringes no First Amendment rights of the College or its students."

There is absolutely no analyis in this decision of any subtantive First Amendment claims. Rather, the reasoning relies entirely on the notion that Congress can impose "reasonable" conditions on funds that educational institutions are not "obligated" to accept.

As the Court in FAIR noted, this proposition has been somewhat limited by subsequent "unconstitutional condition" cases like American Library Association. In that sense, it is those cases which have called Grove City into some question, not Dale. But the Court in FAIR sidesteps this issue entirely by holding that the Solomon Amendment does not do anything unconstitutional under the First Amendment which could not be done directly.

Because the Court set up the issue in that way, Grove City is not actually relevant to the Court's decision in FAIR, because it contains no substantive discussion of First Amendment claims. Rather, on that specific issue, Dale (and a number of other cases) are relevant, whereas Grove City is not.

As for Dale itself--I agree that FAIR's proposed application of Dale, as accepted by the Third Circuit, was in tension with many other cases, such as Jaycees. But that was true of the decision in Dale itself--as written, it incorporated a highly deferential standard on several key issues, and this highly deferential standard was very much in tension with the approach that the Court had previously taken.

So, this is what happens when the Court's most recent case on a subject is in tension with its prior cases on the same subject: new cases come along to test the scope and implications of the Court's most recent decision. That is what FAIR ended up being--a case in which the limits of Dale were tested, and the Court (in my view rightly) limited Dale.

As far as I can tell, you aren't really disagreeing with any of that analysis of Dale. What you are suggesting instead is that it was "ridiculous" to think FAIR would prevail on its Dale claim. Actually, I agree with that too--but only because Dale as written was a pretty "ridiculous" decision in the first place. And in that sense, as I noted, it was practically inevitable that some case like this would come along--a case in which a COA took the decision in Dale seriously, and the Court ended up limiting Dale.

In defense of the FAIR coalition, the suit could not have been completely frivolous since it succeeded at the Third Circuit. In addition, for all we know the FAIR members and their counsel were well aware that the chances for success were less than 50/50 (perhaps well under 50/50) but decided to do their best with a weak case. Lawyers do this all the time, it's hardly grounds for concluding that the lawyer or the client didn't appreciate the strength of the case in advance.

I would also continue to caution people reading too much into this as a case about unconstitutional conditions. Remeber, the court appears to think that the purse strings do not affect a constitutional right here.

I agree with Kovarsky. The Court pointed out that if Congress could do it directly, then it could do it indirectly, through conditions on receiving federal funds. That, in itself, is probably sufficient to distinguish it from most other unconstitutional condition cases.

wrt political consequences -
Wouldn't being on the losing side of a unanimous decision, w/no concurring opinions, be the very definition of "out of the mainstream"?
Haven't the democrats handed the republicans one of their very favorite weapons?

That point was the subject of a thread a short time ago. The law schools' objective was to exclude employers that discriminated IN EMPLOYMENT based on sexual orientation. Passing a law is not "discriminating in employment," and so the notion that Congress would be excluded under a consistent interpretation is not correct.

"I wonder whether self-described conservatives will temper their enthusiasm for FAIR v. Rumsfeld when it's a different Congress using its spending power to impose conditions not so amenable to conservative policy preferences."

Dude, I was attending Grove City when the entire GCC thingy went down. This was precisely the case - The Feds, under Jimmy C, attempted to use federal student grant money to bludgeon a conservative college into submission. No one accused GCC of discrimination, just an unwillingness to kowtow to the federal regulators.

As Salvor Hardin would say, "It's a poor atom blaster that doesn't point both ways". We got it first, now it's your turn. The guy who pays the piper calls the tune.

Incidentally, I note that the House just overwhelmingly voted to support the Solomon Amendment, and I believe that they did the same thing before FAIR was decided as well. Given the vote counts on these resolutions, many Democrats must have voted to support the Solomon Amendment, so I again don't see how this can be cast as Democrat versus Republican issue.